Short History of Criminal Prosecution in
England: Private Prosecution.

A brief glance at the broader history of criminal
prosecution may help
to put this article in its proper context. For the purposes of this section,
it is useful to divide English history into four periods. 12

1. The first age of private prosecution (seventh to tenth
centuries). During this period criminal prosecutions were almost entirely
private. Prosecution was at least partially motivated by the possibility of
monetary compensation. Until at least the late tenth century, those
convicted of crime were not ordinarily hanged, incarcerated, or otherwise
punished, but instead owed the victim compensation (bot) or, in homicide
cases, owed the victim's family the deceased's wergild, a monetary payment
that varied with the deceased's social status.6 13

2. The rise of presentment (tenth to fourteenth centuries).
Starting in the late tenth century, Anglo-Saxon kings began to change the
nature of criminal prosecution. Aethelred's third code, promulgated around
1000, required the twelve leading thanes (nobles) of a wapentake (district)
to accuse and arrest those suspected of crime in their locality.7 This
procedure seems to foreshadow presentment, which, according to some
historians, did not became a routine part of judicial administration until
almost two centuries later, during the reign of Henry II. Under the
presentment procedure, leading men were chosen from each locality and were
required to present (that is, report) on oath crimes committed in their
neighborhoods. These leading men were known as the presenting jury, which is
the ancestor of the grand jury. Like the medieval trial (petit) jury, the
presenting jury was self-informing.8 Little or no evidence was presented in
court. The jurors were expected to gather information informally before they
came to court and to present their conclusions to the judges. 14

The nature of criminal penalties also began to change during this
period. As early as the late tenth century, bot seems to have been payable
to church, king, or community at large rather than to the injured kin.9
There is also archaeological evidence that the death penalty was frequently
imposed in the eleventh century.10 By the late twelfth century, these
changes were firmly entrenched and are regularly attested to by the
surviving records. Hanging and fines payable to the king were the only
criminal penalties regularly imposed in royal courts. In addition, hanging
was usually accompanied by forfeiture of land and chattels. 15

Although presentment and noncompensatory punishments were
becoming increasingly important, no English king even attempted to abolish
private prosecutions, which by the late eleventh century were called
"appeals." In fact, until the turn of the fourteenth century, presentments
were confined almost exclusively to homicide and theft,11 and nearly all
accusations of rape, mayhem,12 wounding, false imprisonment, assault and
battery were brought by way of appeal, as were large numbers of homicide and
theft cases. Although the legal sanction for crime was death or fines
payable to the king, victims (and their families) could appeal and use the
threat of legally imposed hanging or fines to induce compensatory monetary
settlements. By the end of the thirteenth century, however, the appeal was
becoming much less common, and presentment had become the way nearly all
crimes were prosecuted. 16

3. The return of private prosecution (fourteenth to nineteenth
centuries). As noted above, twelfth- and thirteenth-century juries (both
presenting juries and trial juries) were largely self-informing. During the
fourteenth and fifteenth centuries, however, for reasons that have yet to be
fully explained, juries became more passive.13 Trial juries began to rely on
evidence that parties presented in court, and the presenting jury (now
called the grand jury) less frequently made accusations based on its own
knowledge. Instead, the grand jury primarily screened accusations made by
others, declaring "true bill" of accusations ("indictments") it approved.14
Although these prosecutions were formally brought in the name of the Crown,
the predominance of victim initiative suggests that they are properly
classified as private prosecutions.15 Nevertheless, royal officials did
provide investigative assistance. From the late twelfth century, the coroner
had been gathering evidence in homicide cases.16 Justices of the peace
performed a similar function for other crimes from, at latest, the sixteenth
century, and possibly as early as the fourteenth.17 17

4. The age of public prosecution (nineteenth century to present).
In the nineteenth century, partly in response to the growing problem of
urban crime, pressure began to mount for public prosecution. Victims
frequently did not prosecute because it was expensive, time consuming, and
brought few benefits other than the satisfaction of revenge or justice.18 As
a result, by the mid-nineteenth century, most prosecutions were private in
name only, as the "private" prosecutor was in most instances a policeman.
Nevertheless, public prosecution was perceived as a threat to liberty, and
Parliament did not pass legislation to set up a national system of public
prosecutors until 1879.19 Even this statute did not fundamentally undermine
private prosecution, because public prosecutors had very limited
authority.20 It was only with the passage of the 1985 Prosecution of
Offenses Act that England established an effective system of public
prosecution, and even this legislation preserved a limited right of private
prosecution.21 In America, public prosecution seems to have become common
somewhat earlier.22 18

As this outline suggests, the thirteenth century was a crucial
transition period, the time when self-informing presentment replaced private
prosecution. But the thirteenth century was only one of several important
periods of transition. Private prosecution regained its dominant role in
early modern times and in turn gave way to public prosecution in the last
two centuries.

The
relationship between the private citizen, as prosecutor, and the
Attorney General, who has exclusive authority to represent the public in
court1, has been described as follows2:

The right of a private citizen to lay an
information, and the right
and duty of the Attorney General to supervise criminal prosecutions are both
fundamental parts of our criminal justice system.

The right of a citizen to institute a prosecution for a breach of the law
has been called "a valuable constitutional safeguard against inertia or
partiality on the part of authority"3. However, this right can be abused. It
is sometimes necessary for the Attorney General to intervene and conduct or
stay the prosecution to prevent the harms that may flow from such
prosecutions, for example: 1) the harm suffered by a defendant who is
factually innocent; 2) the harm to the court system caused by a frivolous
prosecution4.

Please note that it is a well known fact in the
Province of British Columbia, the secret policy directive of the Attorney
General's office, is "not to proceed on any private prosecution", and there
are many examples of their interference in cases where of overwhelming
evidence of criminal wrongdoing was demonstrated to a Justice of the Peace.
[Stay in tune with BCREVOLUTION for examples]

Both of the excuses raised above, on behalf of the
Attorney General to quash a private prosecution, fail to consider that the
private party must FIRSTpresent his/her evidence of the charge(s)
to a Justice of the Peace, who themselves are already direct
appointees of the government.

It therefore belies all common sense for the
Attorney General to assert that "Private Prosecutions" are in any way
MORE harmful to the innocent, or frivolous, than the thousands of
Prosecutions THEY themselves commence on a daily basis.

An impartial Justice of the piece is more
than qualified in making the lawful determination of facts; AS IS A JURY,
WHICH OUR LAW OF THE LAND (Eternal Magna Carta) states is our inherent right
before we can be imprisoned, or our property seized.

It is THE JURY OF OUR PEERS that is our
greatest safeguard against harm to the innocent.

See below (as you read this government document)
how the government is continuing to obstruct justice, and encroach on your
unalienable right to bring the guilty to justice under our common law, as
preserved in our Great Charter of Liberties, 1215, 1297.

This chapter explains the law on initiating and conducting private
prosecutions. It also explains when the Attorney General of Canada may and
should intervene either to conduct or stay such prosecutions.

26.2 Origin of Private Prosecutions
A private citizen's right to initiate and conduct a private prosecution
originates in the early common law. From the early Middle Ages to the
17th
century, private prosecutions were the main way to enforce the criminal law.
Indeed, private citizens were responsible for preserving the peace and
maintaining the law5:

[U]nder the English common law, crimes were regarded originally as
being committed not against the state but against a particular person or
family. It followed that the victim or some relative would initiate and
conduct the prosecution against the offender ...

Another feature of the English common law was the view that it was not
[actually] the privilege but the duty [by right] of the private citizen to
preserve the
King's Peace and bring offenders to justice6.

Because of the increase in courts and cases in the Middle Ages, the King
began to appoint King's Attorneys to intervene in matters of particular
interest to the King. Intervention took two forms. The King could initiate
and conduct certain prosecutions through a personal representative. The King
could also intervene in cases begun by a private prosecutor where the matter
was of special concern to the King. By intervening, the King's Attorney
could then conduct or stop the proceedings7. As the English common law
developed, the role of Crown law officers grew. Still, private prosecutions
were allowed. To this day they are recognized in several English statutes8.

26.3 Foundation for Private Prosecutions in Canadian Law
No Criminal Code provision expressly authorizes private prosecutions.
Several provisions, however, impliedly recognize such proceedings. Except
where the Attorney General's consent is required, section 504 of the Code
permits anyone to lay an information. As well, the definitions of
"prosecutor" in sections 2 and 785 make it clear that someone other than the
Attorney General may institute proceedings. These provisions apply to
proceedings under the Code and all other federal acts9.

Prior to the 2002 amendments to the Criminal Code10, courts had held: a) aprivate citizen may institute and conduct a prosecution under federal
legislation without the knowledge or participation of the Attorney General
of Canada;11 b) clear and specific language is required to abolish
private
prosecutions under a federal statute.12

Pursuant to the 2002 amendments, however, important limitations were
introduced on the right of a private citizen to institute proceedings.
Section 507.1 of the Code requires a justice receiving such an information
to refer it to a judge or designated justice,
and requires notice to the
Attorney General and an opportunity for the
Attorney General to participate
in a hearing to determine whether a summons or warrant for the arrest of the
accused shall issue. In summary conviction proceedings, the private
prosecutor controls the proceedings from start to finish unless the Attorney
General intervenes. In indictable matters, a private prosecutor may conduct
the trial, including the preliminary inquiry. However, the private
prosecutor requires a judge's consent under subsection 574(3) of the Code to
prefer an indictment.

26.4 Authority of the Attorney General of Canada to Intervene in Private
Prosecutions

At common law the Attorney General could intervene in
private prosecutions
and either conduct the prosecution or enter a nolle prosequi (the
traditional power of the Attorney General to stop proceedings)13. Under
section 5 of the Department of Justice Act, the Attorney General of Canada
is "entrusted with the powers and charged with the duties that belong to the
Office of the Attorney General of England by law or usage, insofar as those
powers and duties are applicable to Canada".

[There is absolutely no such thing as a
"common law" right of an "Attorney General" to stop a proceeding at their
whim. Our common law has always been based on Rule of Law, and the
equality of ALL under the law.

Their assertion is a complete fabrication, and
misdirection of the true common law, which is the law for the people,
not the re-written half-drunken ramblings [precedents] of government puppet
judges who will sell their own soul for 30 pieces of silver.]
[LINK to Judges]

The Criminal Code provides that the Attorney General
of Canada and Attorneys
General of the provinces share responsibility for conducting prosecutions.
However, several Supreme Court of Canada decisions have made it clear that
the authority of provincial Attorneys General to prosecute under federal
statutes, including the Criminal Code, is given by the Code. Their authority
does not flow from any constitutional principle based on subsection 92(14)14
or from some historic role15. The provincial prosecutorial role is assigned
through legislation by Parliament, not constitutionally entrenched.

1.. with respect to proceedings to which this Act applies, means the
Attorney General or Solicitor General of the province in which those
proceedings are taken and includes his lawful deputy, and

2.. with respect to

1.. the Yukon Territory, the Northwest Territories and Nunavut, or

2.. proceedings commenced at the instance of the Government of Canada
and conducted by or on behalf of that Government in respect of a
contravention of a conspiracy or attempt to contravene or counselling the
contravention of any Act of Parliament other than this Act or any regulation
made under any such Act, means the Attorney General of Canada and includes
his lawful deputy.
Under this definition, it follows that if a private individual lays an
information, the Attorney General of Canada lacks authority to intervene in
the case, whether to conduct or stay the proceedings. This is because the
proceedings were not "commenced at the instance of the Government of
Canada"16.

This lack of authority for the Attorney General of Canada to intervene
applies only to prosecutions brought in a province. According to the
definition set out above, the Attorney General of Canada has full authority
to start and stop proceedings and intervene in private prosecutions brought
in the Northwest Territories, the Yukon Territory, and Nunavut.

"Attorney General" is defined somewhat differently for drug prosecutions.
Section 2 of the Controlled Drugs and Substances Act states as follows:

"Attorney General" means

1.. the Attorney General of Canada, and includes their lawful deputy; or

2.. with respect to proceedings commenced at the instance of the
government of a province and conducted by or on behalf of that government,
the Attorney General of that province, and includes their lawful deputy.
Pursuant to this definition, the Attorney General of Canada has authority to
intervene in private prosecutions of drug matters throughout the country.

Another source of the Attorney General's power to intervene in private
prosecutions may be found in section 579.1 of the Criminal Code. This
section was added in 1994 to give the Attorney General of Canada authority
to intervene in private prosecutions commenced under federal statutes other
than Criminal Code, where the provincial Attorney General has not
intervened.

Section 579.01 was added to the Criminal Code in 2002 to permit the Attorney
General to intervene in the proceedings without staying them. Under this
provision the Attorney General may call witnesses, examine and cross-examine
witnesses, present evidence and make submissions without actually conducting
the proceedings.

26.5 Statement of Policy
26.5.1 Private Prosecutions in the Yukon Territory, the Northwest
Territories, and Nunavut
The Attorney General has the responsibility to ensure that all criminal
prosecutions are in the public interest. The Attorney General must also
ensure that it is appropriate to permit private prosecutions to remain in
private hands.

When considering whether to intervene, Crown counsel should consult with the
Prosecution Group Head and consider the following:

1.. the need to strike an appropriate balance between the right of the
private citizen to initiate and conduct a prosecution as a safeguard in the
justice system, and the responsibility of the Attorney General of Canada for
the proper administration of justice in the territories;

2.. the seriousness of the offence - generally, the more serious, the more
likely it is that the Attorney General should intervene;

3.. whether there is sufficient evidence to justify continuing the
prosecution, that is, whether there is a reasonable prospect of conviction
based on the available evidence;

4.. whether a consideration of the public interest criteria described in
Part V, Chapter 15, "The Decision to Prosecute", leads to the conclusion
that the public interest would not be served by continuing the proceedings;

5.. whether there is a reasonable basis to believe that the decision to
prosecute was made for improper personal or oblique motives, or that it
otherwise may constitute an abuse of the court's process such that, even if
the prosecution were to proceed, it would not be appropriate to permit it to
remain in the hands of a private prosecutor; and

6.. whether, given the nature of the alleged offence or the issues to be
determined at trial, it is in the interests of the proper administration of
justice for the prosecution to remain in private hands.
Whenever the Attorney General intervenes, the decision to continue or stay
the proceedings should be made in accordance with the criteria set out in
Part V, Chapter 15, "The Decision to Prosecute".

In some cases, it may be difficult to assess whether there is sufficient
evidence to justify continuing the proceedings, because no police
investigation preceded the laying of charges. If so, it will in most
instances be appropriate for the Attorney General to intervene, request an
adjournment, and ask the RCMP to investigate. It may, in some situations, be
necessary to stay proceedings while the investigation is conducted. After
the investigation, Crown counsel should assess whether to commence
proceedings in accordance with the criteria set out in Part V, Chapter 15,
"The Decision to Prosecute". If a decision is reached not to prosecute,
subsequent proceedings brought privately should, in the absence of unusual
circumstances, be taken over on behalf of the Attorney General and stayed.

26.5.2 Private Prosecutions in the Provinces
As noted above, the Attorney General of Canada has a limited authority to
intervene in private prosecutions in the provinces. Where such authority
exists, it should be exercised on the same basis as outlined in s. 26.5.1
above.

The Government of Canada may still have an interest in certain proceedings.
Many private prosecutions are commenced on the basis of an enforcement
scheme found in regulatory enactments such as the Fisheries Act. Charges of
this nature ought to be brought to the attention of the Regional Director,
as it may be appropriate to bring enforcement or policy concerns to the
attention of the Attorney General of the province so that provincial
authorities can then make an informed decision about intervening.

26.6 Consultation With Senior Management
Where an issue concerning the conduct or potential termination of a private
prosecution needs to be resolved, Crown counsel should refer the matter to
the Senior Regional Director who, in cases of particular public interest,
should confer with the Assistant Deputy Attorney General (Criminal Law)
before making a decision.

26.7 Case References
Re Bradley and The Queen (1975), 9 O.R. (2d) 161 (Ont. C.A.): Where the
interests of justice require, the Attorney General may intervene and take
over a private prosecution of a summary conviction offence.

MacIssac v. Motor Coach Ind. Ltd., [1982] 5 W.W.R. 391 (Man. C.A.): Since
the word "prosecutor" includes the informant or counsel for the informant,
it is incontestable that a private prosecution can take place in the absence
of intervention by the Crown.

Re Hamilton and The Queen (1986), 30 C.C.C. (3d) 65 (B.C.S.C.): An
intervention by the Attorney General in a private prosecution does not
contravene section 7 of the Charter.

Re Faber and the Queen (1987), 38 C.C.C. (3d) 49 (Que. S.C.): A decision to
stay does not infringe sections 7 or 15 of the Charter.

Chartrand v. Quebec (Min. of Justice) (1986), 55 C.R. (3d) 97 (Que. S.C.):
Ministerial decisions, whether based on a statute, a prerogative, or the
common law, are reviewable by virtue of section 32 of the Charter.
Therefore, the Attorney General's decision to intervene and stay a private
prosecution is also reviewable.

R. v. Cathcart and Maclean (1988), 207 A.P.R. 267 (N.S.S.C.): A superior
court judge does not need to approve a private prosecution of a hybrid
offence. An order under subsection 504(3) [now subsection 574(3)] of the
Criminal Code is required only after the accused has been committed to stand
trial on an indictable offence.

Kostuch (Informant) v. Alberta (Attorney General) (1995), 101 C.C.C. (3d)
321 (Alta. C.A.): The court will not interfere with the Attorney General's
exercise of discretion to intervene in a private prosecution unless there
has been a "flagrant impropriety".

Werring v. B.C. (Attorney General) (1997), 122 C.C.C. (3d) 343 (B.C.C.A.):
An informant seeking judicial review of Attorney General's decision to stay
a private prosecution is not entitled to cross-examine the prosecutor who
entered the stay without showing a basis for the belief that such
cross-examination would show flagrant impropriety by the Crown